Orbitz Worldwide, LLC v. Global Access / domain admin
Claim Number: FA1312001536870
Complainant is Orbitz Worldwide, LLC (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Global Access / domain admin (“Respondent”), Isle of Man.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <cheaptickest.com>, <obitz.com>, <orbitx.com>, and <orbizt.com>, registered with Fabulous.Com Pty Ltd.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 31, 2013; the National Arbitration Forum received payment on December 31, 2013.
On January 1, 2014, Fabulous.Com Pty Ltd confirmed by e-mail to the National Arbitration Forum that the <cheaptickest.com>, <obitz.com>, <orbitx.com>, and <orbizt.com> domain names are registered with Fabulous.Com Pty Ltd and that Respondent is the current registrant of the names. Fabulous.Com Pty Ltd has verified that Respondent is bound by the Fabulous.Com Pty Ltd registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On January 13, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 3, 2014 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@cheaptickest.com, postmaster@obitz.com, postmaster@orbitx.com, and postmaster@orbizt.com. Also on January 13, 2014, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On February 4, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <cheaptickest.com>, <obitz.com>, <orbitx.com>, and <orbizt.com> domain names, the domain names at issue, are confusingly similar to Complainant’s CHEAP TICKETS and ORBITZ marks.
2. Respondent does not have any rights or legitimate interests in the domain names at issue.
3. Respondent registered and used the domain names at issue in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant was formed in 1999, and is now a leading global online travel company that uses innovative technology to enable leisure and business travelers to research, plan, and book a broad range of travel products. Complainant holds trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the CHEAP TICKETS (Reg. No. 2,021,749 registered December 10, 1996), CHEAPTICKETS.COM (Reg. No. 2,665,841 filed August 21, 2001; registered December 24, 2002), and CHEAP TICKETS INC. (Reg. No. 3,750,940 filed May 8, 2000; registered February 3, 2010) marks. Complainant also holds trademark registrations with the USPTO for the ORBITZ (e.g., Reg. No. 2,858,685 filed April 18, 2000; registered June 29, 2004) and ORBITZ.COM (Reg. No. 2,951,983 filed April 18, 2000; registered May 17, 2005) marks. The <cheaptickest.com> domain name is confusingly similar to Complainant’s CHEAP TICKETS mark.
The <obitz.com>, <orbitx.com>, and <orbizt.com> domain names are confusingly similar to Complainant’s ORBITZ.COM mark.
Respondent has not been commonly known by the disputed domain names. The WHOIS information suggests Respondent is known as an entity other than the trademark associated with Complainant. Complainant has not licensed, authorized, or permitted Respondent to register domain names incorporating Complainant’s mark, and Respondent is not sponsored by or legitimately affiliated with Complainant in any way. Respondent is using the disputed domain names to redirect visitors to a website operated by Complainant’s competitor, <airlinetickets.com>. Respondent presumably receives consideration for driving traffic to this competing firm. Respondent is a serial cybersquatter, and has established a pattern of such behavior. Respondent registered and is using the disputed domain names in bad faith under Policy ¶ 4(b)(iii) by redirecting Internet users to a website featuring services in direct competition with those offered by Complainant, thereby disrupting Complainant’s business. Respondent registered and is using the disputed domain names in bad faith under Policy ¶ 4(b)(iv) by creating a likelihood of confusion with Complainant’s marks and commercially benefitting from that confusion. Finally, Respondent has engaged in typosquatting behavior which is, in and of itself, evidence of bad faith.
Respondent registered the disputed domain names on the following dates:
<cheaptickest.com> on August 24, 2000;
<obitz.com> on March 17, 2002;
<orbitx.com> on June 16, 2006; and
<orbizt.com> on July 25, 2002.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Complainant was formed in 1999 and is now a leading global online travel company that uses innovative technology to enable leisure and business travelers to research, plan, and book a broad range of travel products. Complainant holds trademark registrations with the USPTO for the CHEAP TICKETS (Reg. No. 2,021,749 registered December 10, 1996), CHEAPTICKETS.COM (Reg. No. 2,665,841 filed August 21, 2001; registered December 24, 2002), and CHEAP TICKETS INC. (Reg. No. 3,750,940 filed May 8, 2000; registered February 3, 2010) marks. Complainant also holds trademark registrations with the USPTO for the ORBITZ (e.g., Reg. No. 2,858,685 filed April 18, 2000; registered June 29, 2004) and ORBITZ.COM (Reg. No. 2,951,983 filed April 18, 2000; registered May 17, 2005) marks. Previous panels have agreed that registration with the USPTO confers rights in a mark dating back to filing. See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a USPTO trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶ 4(a)(i)); see also Thompson v. Zimmer, FA 190625 (Nat. Arb. Forum Oct. 27, 2003) (“As Complainant’s trademark application was subsequently approved by the U.S. Patent and Trademark Office, the relevant date for showing ‘rights’ in the mark for the purposes of Policy ¶ 4(a)(i) dates back to Complainant’s filing date.”). Accordingly, Complainant has established Policy ¶ 4(a)(i) rights in the above marks dating back to their respective dates of filing for registration, regardless of the fact that Respondent appears to reside outside of the United States. See Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (finding that it is irrelevant whether the complainant has registered its trademark in the country of the respondent’s residence).
The <cheaptickest.com> domain name is confusingly similar to Complainant’s CHEAP TICKETS mark. This disputed domain name transposes the letters “s” and “t” in Complainant’s mark while also removing the space between words in the mark and affixing the generic top-level domain (“gTLD”) “.com.” Panels have agreed that neither spacing nor gTLDs are relevant to Policy ¶ 4(a)(i). See Am. Int’l Group, Inc. v. Domain Admin. Ltd., FA 1106369 (Nat. Arb. Forum Dec. 31, 2007) (finding that “spaces are impermissible and a generic top-level domain, such as ‘.com,’ ‘.net,’ ‘.biz,’ or ‘.org,’ is required in domain names. Therefore, the panel finds that the disputed domain name [<americangenerallifeinsurance.com>] is confusingly similar to the complainant’s [AMERICAN GENERAL] mark.”). The panel in Google Inc. v. Jon G., FA 106084 (Nat. Arb. Forum Apr. 26, 2002), found the <googel.com> domain name to be confusingly similar to the complainant’s GOOGLE mark, explaining that “[t]he transposition of two letters does not create a distinct mark capable of overcoming a claim of confusing similarity, as the result reflects a very probable typographical error.” This Panel similarly finds that Respondent’s transposition of letters in Complainant’s mark does not defeat a claim of confusing similarity, rendering the <cheaptickest.com> domain name confusingly similar to Complainant’s CHEAP TICKETS mark for the purposes of Policy ¶ 4(a)(i).
The <obitz.com>, <orbitx.com>, and <orbizt.com> domain names are confusingly similar to Complainant’s ORBITZ.COM mark. The Panel notes that <obitz.com> omits the letter “r” from Complainant’s mark, <orbitx.com> replaces the “z” in Complainant’s mark with an “x,” and <orbizt.com> transposes the letters “z” and “t” in Complainant’s mark. Past panels have found that neither the omission of a single letter, the replacement of a single letter with another, nor the transposition of letters in a complainant’s mark are sufficient to distinguish a disputed domain under Policy ¶ 4(a)(i). See Pfizer Inc. v. BargainName.com, D2005-0299 (WIPO Apr. 28, 2005) (holding that the <pfzer.com> domain name was confusingly similar to the complainant’s PFIZER mark, as the respondent simply omitted the letter “i”); see also Belkin Components v. Gallant, FA 97075 (Nat. Arb. Forum May 29, 2001) (finding the <belken.com> domain name confusingly similar to the complainant's BELKIN mark because the name merely replaced the letter “i” in the complainant's mark with the letter “e”); see also Wyndham IP Corp. v. LaPorte Holdings, Inc., FA 373545 (Nat. Arb. Forum Jan. 17, 2005) (finding the <wynhdam.com> and <wyandham.com> domain names to be confusingly similar to the complainant’s WYNDHAM mark because the domain names merely transposed letters in the mark). In light of the foregoing precedent, the Panel concludes that each of Respondent’s <obitz.com>, <orbitx.com>, and <orbizt.com> domain names is confusingly similar to Complainant’s ORBITZ.COM mark pursuant to Policy ¶ 4(a)(i).
The Panel finds that Policy ¶ 4(a)(i) has been established.
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
According to Complainant, Respondent has never been known by any of the disputed domain names. The relevant WHOIS information suggests Respondent is known as an entity other than the trademark associated with Complainant. The Panel notes that the WHOIS record identifies Respondent as “Global Access / domain admin.” Complainant has not licensed, authorized, or permitted Respondent to register domain names incorporating Complainant’s marks. Finally, Respondent is not sponsored by or legitimately affiliated with Complainant in any way. Given Respondent’s failure to rebut the preceding allegations, the Panel determines that the weight of the evidence in this case compels the Panel to hold that Respondent is not commonly known by the <cheaptickest.com>, <obitz.com>, <orbitx.com>, or <orbizt.com> domain names within the meaning of Policy ¶ 4(c)(ii). See Educ. Broad. Corp. v. DomainWorks Inc., FA 882172 (Nat. Arb. Forum Apr. 18, 2007) (concluding that the respondent was not commonly known by the <thirteen.com> domain name based on all evidence in the record, and the respondent did not counter this argument in its response).
Respondent is not using the disputed domain names for a bona fide offering of goods or services under Policy ¶ 4(c)(i) or for a noncommercial or fair use under Policy ¶ 4(c)(iii). Instead, Respondent is using the disputed domain names to redirect visitors to a website operated by Complainant’s competitor, <airlinetickets.com>. Presumably, Respondent receives some form of consideration for driving traffic to the website of this competing firm. In Ameritrade Holdings Corp. v. Polanski, FA 102715 (Nat. Arb. Forum Jan. 11, 2002), the panel held that the respondent’s use of a disputed domain name to redirect Internet users to a financial services website, which competed with the complainant’s business, was not a bona fide offering of goods or services. Similarly, the Panel finds that Respondent’s use of the <cheaptickest.com>, <obitz.com>, <orbitx.com>, and <orbizt.com> domain names to redirect Internet users to a website offering airline services that compete with those offered by Complainant under its mark represents neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a noncommercial or fair use under Policy ¶ 4(c)(iii).
The Panel finds that Policy ¶ 4(a)(ii) has been established.
It appears that Respondent is a serial cybersquatter and has established a pattern of such behavior. Complainant lists a sampling of UDRP cases in which Respondent was found to have registered various domain names in bad faith. See Lincoln Nat’l Corp. v. Global Access, FA 1478665 (Nat. Arb. Forum Feb. 21, 2013); see also Ashley Furniture Indus. v. Global Access, FA 1474175 (Nat. Arb. Forum Jan. 14, 2013); see also Transamerica Corp. v. Global Access, FA 1424050 (Nat. Arb. Forum Feb. 28, 2012). Given that each of the foregoing cases identifies its respondent as an entity named “Global Access” residing in “Isle of Man,” the Panel surmises that the respondent in each of those cases and the Respondent in the present case are in fact one and the same. Accordingly, the Panel holds that Respondent has demonstrated a pattern of registering domain names in bad faith, thereby indicating that Respondent has registered the <cheaptickest.com>, <obitz.com>, <orbitx.com>, and <orbizt.com> domain names in bad faith as well, pursuant to Policy ¶ 4(b)(ii). See Westcoast Contempo Fashions Ltd. v. Manila Indus., Inc., FA 814312 (Nat. Arb. Forum Nov. 29, 2006) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(ii) where the respondent had been subject to numerous UDRP proceedings where panels ordered the transfer of disputed domain names containing the trademarks of the complainants).
Further, it appears that Respondent registered and is using the disputed domain names in bad faith under Policy ¶ 4(b)(iii) by redirecting Internet users to a website featuring services in direct competition with those offered by Complainant, thereby disrupting Complainant’s business. Respondent is using the disputed domain names to redirect visitors to a website operated by Complainant’s competitor, <airlinetickets.com>, and Respondent receives some form of consideration for driving traffic to the website of this competing firm. Past panels have found the registration of domain names that are confusingly similar to complainants’ marks, for the purpose of linking to the websites of complainants’ competitors, to represent bad faith registration and use under Policy ¶ 4(b)(iii). See, e.g., Spark Networks PLC v. Houlihan, FA 653476 (Nat. Arb. Forum Apr. 18, 2006) (holding that the respondent’s registration of a domain name substantially similar to the complainant’s AMERICAN SINGLES mark in order to operate a competing online dating website supported a finding that respondent registered and used the domain name to disrupt the complainant’s business under Policy ¶ 4(b)(iii)). In like vein, it appears that Respondent’s <cheaptickest.com>, <obitz.com>, <orbitx.com>, and <orbizt.com> domain names improperly disrupt Complainant’s business. Accordingly, the Panel finds Respondent’s registration and use of the domains to be illustrative of bad faith according to Policy ¶ 4(b)(iii).
Also, Respondent registered and is using the disputed domain names in bad faith under Policy ¶ 4(b)(iv) by creating a likelihood of confusion with Complainant’s marks and commercially benefitting from that confusion. Respondent is using the disputed domain names to redirect visitors to <airlinetickets.com>, a website operated by a competitor of Complainant. Presumably, Respondent receives some form of consideration for driving traffic to the website of this competing firm. After taking note of the similarity between Respondent’s <cheaptickest.com>, <obitz.com>, <orbitx.com>, and <orbizt.com> domain names and Complainant’s corresponding trademarks, the Panel reasons that Respondent intentionally registered these particular domain names with the goal of creating a false association with Complainant. Respondent created such confusion in an attempt to achieve some sort of pecuniary gain at the expense of Complainant and registered and is using the disputed domain names in bad faith under Policy ¶ 4(b)(iv). See Yahoo! Inc. v. Web Master, FA 127717 (Nat. Arb. Forum Nov. 27, 2002) (“By use of <yahgo.com> to operate its search engine, a name that infringes upon Complainant’s mark, Respondent is found to have created circumstances indicating that Respondent, by using the domain name, has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the website or of a product or service on the website as proscribed in Policy ¶ 4(b)(iv).”).
Finally, Respondent has engaged in typosquatting behavior which is, in and of itself, evidence of bad faith. The panel in Zone Labs, Inc. v. Zuccarini, FA 190613 (Nat. Arb. Forum Oct. 15, 2003), found typosquatting to exist where a respondent registers and uses a domain name “that capitalizes on the typographical error of an Internet user” in trying to reach a website of the complainant. In the instant case, the Panel notes that, aside from the elimination of spacing, the second-level portion of Respondent’s <cheaptickest.com> domain name merely transposes the final two letters in Complainant’s CHEAP TICKETS mark. Further, Respondent’s <obitz.com>, <orbitx.com>, and <orbizt.com> domain names each represent a simple misspelling of Complainant’s ORBITZ.COM mark. Accordingly, the Panel finds that Respondent’s registration of the disputed domain names constitutes typosquatting and finds bad faith registration under Policy ¶ 4(a)(iii) on this basis. See Dermalogica, Inc. v. Domains to Develop, FA 175201 (Nat. Arb. Forum Sept. 22, 2003) (finding that the <dermatalogica.com> domain name was a “simple misspelling” of the complainant's DERMALOGICA mark which indicated typosquatting and bad faith pursuant to Policy 4 ¶ (a)(iii)).
The Panel finds that Policy ¶ 4(a)(iii) has been established.
Note: Had Respondent filed a Response and asserted laches as a defense, the Panel would have seriously considered the matter. The domain names at issue were registered between thirteen and seven years ago.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <cheaptickest.com>, <obitz.com>, <orbitx.com>, and <orbizt.com> domain names be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: February 5, 2014
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